Fluid Jurisdictions: Colonial Law and Arabs in Southeast Asia

By Nurfadzilah Yahaya

This wide-ranging, geographically ambitious book tells the story of the Arab diaspora within the context of British and Dutch colonialism, unpacking the community's ambiguous embrace of European colonial authority in Southeast Asia. In Fluid Jurisdictions, Nurfadzilah Yahaya looks at colonial legal infrastructure and discusses how it impacted, and was impacted by, Islam and ethnicity. But more important, she follows the actors who used this framework to advance their particular interests.

Yahaya explains why Arab minorities in the region helped to fuel the entrenchment of European colonial legalities: their itinerant lives made institutional records necessary. Securely stored in centralized repositories, such records could be presented as evidence in legal disputes. To ensure accountability down the line, Arab merchants valued notarial attestation land deeds, inheritance papers, and marriage certificates by recognized state officials. Colonial subjects continually played one jurisdiction against another, sometimes preferring that colonial legal authorities administer Islamic law—even against fellow Muslims.

Fluid Jurisdictions draws on lively material from multiple international archives to demonstrate the interplay between colonial projections of order and their realities, Arab navigation of legally plural systems in Southeast Asia and beyond, and the fraught and deeply human struggles that played out between family, religious, contract, and commercial legal orders.

• Language: English
• Publisher: Cornell University Press
• Release date: Sep 15, 2020
• ISBN: 9781501750885

Book preview

Fluid

Jurisdictions

Colonial Law and Arabs

in Southeast Asia

Nurfadzilah Yahaya

Cornell University Press

Ithaca and London

For my parents, Yahaya Abdul Kadir and Sharifah Azizah Almahdali

Contents

Acknowledgments

Note on Transliteration and Translation

Introduction: Establishing Legal Domains

1. The Lure of Bureaucracy: British Administration of Islamic Law in the Straits Settlements

2. Surat Kuasa: Powers of Attorney across the Indian Ocean

3. Resident Aliens: Exclusions of Arabs in the Netherlands Indies

4. Legal Incompetence: Jurisdictional Complications in the Netherlands Indies

5. Constructing the Index of Arabs: Colonial Imaginaries in Southeast Asia

6. Compromises: The Limitations of Diasporic Religious Trusts

Conclusion: Postcolonial Transitions

Notes

Bibliography

Index

Acknowledgments

In the course of researching and writing my book, I was supported by many individuals to whom I am truly grateful. At Princeton University, Michael Laffan, Linda Colley, and Muhammad Qasim Zaman helped early on to shape the direction the book would eventually take. I am also indebted to Bhavani Raman and Susan Naquin. Kim Lane Scheppele provided me with space to workshop each chapter in the Program in Law and Public Affairs. I count myself immensely fortunate that I could benefit from Dirk Hartog’s tutelage and support when he led the Hurst Summer Institute in Legal History at the University of Wisconsin-Madison in June 2013.

Over the years, I have been buoyed by support from Alex Bevilacqua, Edna Bonhomme, Jim Bonk, Parween Ebrahim, Catherine Evans, Kathi Ivanyi, Hannah Weiss Muller, Margaret Ng, Helen Pfeifer, Suzanne Podhurst, Intisar Rabb, Kalyani Ramnath, Padraic Scanlan, Wayne Soon, and Michael Woldemariam. Megan Brankley Abbas patiently read drafts of my early chapters and gave comments. Hailing from the other end of the Indian Ocean, Sarah Jappie added more perspective, humor, and a counterbalance to my life in Princeton. Rohit De, Rotem Geva, Radha Kumar, and I formed a writing group that helped keep me on schedule and provided great feedback. Above all, I am indebted to Rohit De and Alden Young for making my time at Princeton a wonderful one. Words cannot describe how they enriched my life many times over both intellectually and socially.

At Washington University in St. Louis, Liz Borgwardt, Lori Watt, Nancy Reynolds, and Nancy Berg generously provided mentorship and made St. Louis seem like another home for me. I would also like to thank Anika Walke and Timothy Parsons for their comments on my drafts. Catherine Kelly provided support and friendship across our small hallway. Our conversations and writing sessions cheered me up considerably. Outside of Washington University, the presence of Jeff Redding and Charlotte Walker-Said were like rays of sunshine, and I count myself truly lucky to have so many legal scholars wherever I moved to.

The late Benedict Anderson pushed me to make bolder arguments, and I will never forget his advice. In Leiden, Nico Kaptein and Kees van Dijk provided me with advice. I am especially grateful to Lisbeth Ouwehand and her British shorthair, Oolong, for their support and friendship and for making my visits to the Netherlands constantly joyful. I thank Jeff Petersen at the Cornell Library and Annabel Teh Gallop at the British Library, as well as Jaap Anten and Lam Ngo at the KITLV in Leiden. I am thankful to the excellent editors at Cornell University Press, namely Emily Andrew, Alexis Siemon, Karen Hwa, and Julia Cook.

I was fortunate to be invited to present parts of the book in various places. The Hurst seminar at University of Wisconsin-Madison was particularly illuminating, and I thank all of the participants, especially Mitra Sharafi, Laurie Wood, and Natalie Zemon Davis. At various conferences and workshops I benefitted hugely from generous feedback on chapter drafts by Kamran Ali, Jerusa Ali, Stuart Banner, Debjani Bhattacharyya, Ritu Birla, Beshara Doumani, Michael Gilsenan, Iza Hussin, Martha Jones, Mahmood Kooria, Sumit Mandal, Renisa Mawani, Ronit Ricci, Charlie Peevers, Sanne Ravensbergen, Julia Stephens, Eric Tagliacozzo, and Barbara Welke.

I am grateful to Engseng Ho, who continued to advise me on the book at various stages of revision. I am touched by his constant generosity. I am also very thankful to Mitra Sharafi, who gave me her time and knowledge. She is a model intellectual whom I hope to emulate.

At the National University of Singapore, I am grateful to Maitrii Aung-Thwin, Chan Cheow Thia, Jack Chia, Ian Chong, Michael Feener, Loh Shi Lin, Tan Li-Jen, and Wang Jinping for their support. Cheah Wui Ling has encouraged me from the beginning, which made my homecoming that much sweeter. I also thank my colleagues at the Asia Research Institute in the Religion and Globalization Cluster, especially Giuseppe Bolotta, Amelia Fauzia, and Catherine Scheer. Kenneth Dean is a wonderful mentor and has provided much gentle guidance in terms of framing and context, and for that I am thankful to him.

I would also like to thank Claudine Ang, Will Hanley, Amali Ibrahim, Nadia Dahak Ibrahim, Jack Jin Gary Lee, Mark Fathi Massoud, Naderah Mansour, Nada Moumtaz, Nahed Samour, and Hanisah Abdullah Sani. Khalidal Huda Sukhaimi and Nurul Asyikin constantly provided support from the other side of the globe, and their love and care bolstered me from afar.

I thank my brother, Yazid, for all his love and support, which never wavered across huge distances—I could not ask for a better sibling. I am immensely grateful to my parents, Yahaya Abdul Kadir and Sharifah Azizah Syed Ismail Almahdali, who taught me everything I know, who gave me strength, and who have sacrificed so much for my brother and me. I dedicate this book to them.

Note on Transliteration and Translation

I have followed the International Journal of Middle East Studies (IJMES) transliteration system for Arabic and Jawi scripts except when sources in romanized Malay, Indonesian, French, English, and Dutch indicate otherwise. Spellings of names are particularly inconsistent. Wherever possible, I use the most common iteration of a person’s name across all sources—for example, Syed instead of Sayyid. Translations are mine unless otherwise indicated.

Introduction

Establishing Legal Domains

On March 15, 1599, a ship named Geldria landed at a place called Oertatan somewhere among the Banda islands in the Moluccas, the famed Spice Islands, located in the eastern part of present-day Indonesia. Lured by nutmeg and mace that grew only on these islands, the ship had left Texel in North Holland ten months earlier. The ship, the second Dutch foray to the East Indies, carried two hundred sailors, soldiers, and merchants and was manned by the Dutch captain Jacob van Heemskerk.¹ The first person that he, like any visitor to a port in the region, met in Oertatan was the shahbandar (harbormaster) of the island, who came aboard the Geldria to enter into long, drawn-out negotiations with Van Heemskerk in Portuguese.² Heads of villages had less power than both the shahbandar and the Arab merchants in the area, the Dutch noticed.³ Four or five Arab men then approached the ship and were greeted with Van Heemskerk’s complaints that the shahbandar had wanted him to pay an exorbitant amount for mace. Van Heemskerk decided to negotiate with the oldest and richest of the Arabs instead. At a time when the price of mace was not yet fixed according to the price of silver, these Arab merchants determined the cost of this precious commodity, available only in the Spice Islands. The Arabs told Van Heemskerk that the local Bandanese had been stoked by the Javanese on the islands to attack him and his crew, but this was later dismissed as rumor. Most tellingly, in recounting his first meeting with these Arabs aboard his ship, Van Heemskerk noted their Oriental cunning (Oostersche geslepenheid) and believed they approached him because they were motivated by blatant covetousness.⁴ Suspicion, innuendo, and intrigue would continue to hound the relationship between European colonial elite and the Arabs.

The meeting on board Geldria demonstrates how Arabs actively positioned themselves as intermediaries between the Bandanese and the Dutch and proved to be powerful merchants able to influence power structures on the islands. This image became so ingrained in the Dutch imagination that eighty years later, when Maurits van Happel, a lieutenant under the governor-general of Java, Cornelis van Speelman, attempted to win the hearts and minds of locals in the archipelago in the 1680s, he chose to masquerade as an Arab middleman.⁵

In 1602, three years after Van Heemskerk’s expedition, another ship sailed from Texel under the authority of the newly sealed charter endorsing the sovereign rights of the Vereenigde Oostindische Compagnie (VOC; Dutch East India Company) and its first fleet.⁶ The VOC wanted to quickly set up a monopoly by cutting out other traders—the Javanese, the Gujeratis, Malays, the Arabs, and the Portuguese—but they could not immediately do so due to the need to honor advance payments from these same traders, a situation that further underscores the threat they posed to European traders. By 1621, the Banda islands were controlled by the VOC and their populations had been killed or enslaved under Dutch planters.⁷

The place known as Oertatan does not exist on any map because it was either a Portuguese or Dutch corruption of the Malay term orang datang, which means newcomer or new arrival in Malay and Indonesian. In other words, Oertatan was a flexible category that included all foreigners—Arab, European, and otherwise—who had settled on the island. It is not hard to imagine numerous Oertatans throughout the vast archipelago. However, the arrival of the Dutch heralded a transformation of the idea of sovereignty in the region. Over the next two centuries, the egalitarian multicultural promise of Oertatan was cut short by violent manifestations of imperialist ambitions.⁸ The historian Lisa Ford writes that empire changed sovereignty because it altered people’s relationship with space.⁹ Imperialism created the conditions for the redefinition of sovereignty through the legal subordination of people in defined territorial units such that over time, territorial jurisdiction became a necessary handmaiden to sovereignty. Under this new form of sovereignty, new power structures emerged.

This book flips the more common historical perspective that European imperialism led to new patterns of legal pluralism across empires that spawned possibilities for interpolity contact and trade, acting as catalysts for the emergence of global legal regimes. It demonstrates how British and Dutch territorial jurisdictions expressed very specific relationships between territory, authority, and forms of law, and it simultaneously puts into stark relief the preponderance of diasporic Arab merchants generating their own jurisdictions across the Indian Ocean in tandem with those of the European colonists. Not only were these Arabs attuned to legal pluralism being the operative condition of law, they were also acutely aware of jurisdictional ordering and the concentration of power across time and space. Because they were very much aware of how fluid jurisdictions could be over time and space. they committed to creating their own legal domains across the Indian Ocean even as the world shifted quickly around them from the mid-nineteenth century onward.¹⁰ This book proposes a spatial repositioning of the Indian Ocean from the perspective of Southeast Asia outward toward Ḥaḍramawt, a region located in present-day Yemen from which most Arabs in Southeast Asia originated (20 to 30 percent of the Ḥaḍramī population lived abroad by the 1930s).¹¹ Members of the Ḥaḍramī diaspora attempted to bring their own legislation with them, inscribing territorial lines across the Indian Ocean through law. The result was not so much a jurisdictional domain crisscrossed by multiple sovereignties as a surge toward colonial jurisdictions in Southeast Asia. Diasporic Arabs oriented themselves by visualizing something known as shari’a or Islamic law, consisting of a core of ideas and a loose collection of norms sometimes slightly off their sightline but close enough to always be visible. Shari’a would be the lodestar that would guide their way over the next century. In both British and Dutch colonial jurisdictions in Southeast Asia, shari’a law became a symbol of Arab identity.

The twist to the stock colonial narrative is that a significant driving force behind the expansion of colonial jurisdiction in Southeast Asia during the late nineteenth and early twentieth centuries came from colonial subjects themselves. Rather than circumventing colonial legal institutions and systems, members of the Arab diaspora based in Southeast Asia used colonial channels to try to shape the jurisdictional world of the Indian Ocean in their image at a time when there was no single dominant legal jurisdiction across the ocean. Their collective decision to rely heavily on colonial bureaucracies and institutions in various ways introduced the legitimacy that colonial legal regimes otherwise lacked. By doing so, they extended, deepened, and exploited these patterns of legal pluralism in order to enforce their own global legal regimes entwined with colonial jurisdictions.

The Netherlands Indies

The VOC’s returning fleet system gradually changed to a more permanent VOC presence in the region under a governor-general with the center of administration established at Batavia on the island of Java in 1619. Dutch dominance in Southeast Asia came on the tail of Portuguese decline, which culminated in the Dutch conquest of Portuguese in 1641. Over the course of the seventeenth century, the VOC perpetrated massacres of local populations and waged wars with other European traders as they consolidated their position to become a major commercial, military, and political entity in the archipelago. They managed to stave off competition in order to establish a monopoly over the spice trade by introducing exploitative violent policies in the Moluccas, including Banda, as well as parts of Java, Sumatra, Sulawesi, and Malacca. From 1720 onward, the VOC steadily declined and was dissolved on December 31, 1799, after which the Dutch government took over control of VOC territories. Thereafter, different parts of Indonesia experienced colonialism at different scales, with Aceh being colonized in the 1870s while Bali fell under Dutch rule only in 1906. By contrast, Java and Maluku were colonies for nearly 350 years.

Though based in Batavia, Dutch colonial rule remained highly decentralized over the seventeen-thousand-island archipelago, with different degrees of colonial rule. From 1830 onward, the island of Java was increasingly drawn into the powerful extractive grid of the cultivation system officially known as Cultuurstelsel and more accurately represented by the Indonesian term tanam paksa (forced cultivation), whereby peasants were forced to grow tropical agricultural products, such as coffee, rice, sugar, indigo, tobacco, tea, pepper, cinnamon, and other products, to cater to the European market, with all profits going to the Dutch government treasury.¹² Up to 60 percent of the Javanese population became planters for the Dutch colonial government supervised by Dutch inspectors (binnenlands bestuur).¹³ Cultuurstelsel effectively transformed the agricultural landscape of Java permanently as subsistence farmers became commodity producers whose labor toward profit-making for the Netherlands was made compulsory.

Figure 1.

Map of the Netherlands Indies.

The policy entrenched new property regimes in the colony. In introducing the policy in 1839, Governor-General Johannes van den Bosch claimed to be inspired by William I, who instituted similar measures in parts of the Netherlands Indies, but he actually owed a debt to his British predecessor in Java, Thomas Stamford Raffles, lieutenant-governor of Java from 1811 to 1815, who introduced an official land settlement system from Madras, India, known as ryotwari, to Java during the British interregnum in 1813.¹⁴ The ryotwari system assumed that Indian sovereigns were absolute proprietors, and the government made a compact with cultivators as occupants.¹⁵ By extension, European colonial powers owned all the land in the colony, which meant that peasants had to pay them rent. Not surprisingly, the Dutch preserved this view when they returned to rule Java in 1815, a step that was smoothly done since Raffles ruled with the help of Dutch colonial government officials. Crucially, according to Raffles’ scheme, farmers had to pay land tax to the colonial government either in the form of produce or money if they were not able to meet requirements.¹⁶ The policy of Cultuurstelsel was a form of tax since more land was set aside for compulsory labor—sometimes up to 100 percent in certain parts of Java.¹⁷ Cultuurstelsel transformed the Indies into a highly profitable colony but came at a high cost for Javanese subjects, leading to poverty among farmers and severe famines in Cirebon in 1844, in Tegal and Semarang in 1850, and in Central Java in 1851.¹⁸ The policy encroached extensively upon Javanese land ownership because while these cash crops meant for the European market were supposed to be planted in land classified as uncultivated land (woeste gronden), Dutch colonial government deliberately misunderstood Javanese property regimes or claimed they had not discovered local customary laws in order to pave the way for the colonial scheme to take root in Java.¹⁹ The painful effects of Cultuurstelsel, described in unflinching detail in the famous novel Max Havelaar by Eduard Douwes Dekker (written under the pen name Multatuli), led to widespread criticism back in the Netherlands.²⁰ Colonial guilt was displaced onto a group designated Foreign Orientals, deemed to be exploiters of the labor of the Javanese Natives. Jan Jacob Rochussen, governor-general of the Netherlands Indies, opined in an 1850 letter to his colleague that the European makes the law, but is unfair when dividing the burdens. Too many burdens fall on the native, too few on himself and on the Chinese and the Arab. Rochussen thus equated the colonial government with Foreign Orientals, who supposedly benefitted from the Natives’ toil under the Cultuurstelsel policy. This view led Dutch colonialists to officially adopt protectionist policies on behalf of the Natives against Foreign Orientals. In colonial courts, they deployed new Natives’ ownership (eigendomsrecht) and property rights (bezitsrecht) against Foreign Orientals. Cultuurstelsel was avowedly declared a failure by 1870, leading to what is known as the Liberal Period in the Netherlands Indies, which in turn gave way to the Ethical Period in 1901. However, the laws implemented during Cultuurstelsel, a period of severe oppression, proved sticky. Well into the twentieth century, high-profile feuds between scholars at Leiden University, headed by Cornelis van Vollenhoven, and at Utrecht University, led by Nolst Trenite, dwelt on how significant the village power of disposal over unused lands was.²¹ Vollenhoven believed that the village had more significant power of disposal over such land than Trenite believed, but the latter’s policies not surprisingly gained more sympathy among Dutch administrators who wanted more access to land.

It is within this context of punitive policies and mounting colonial guilt that the Arab population suddenly found itself suffering from a perceived lack of rootedness as they were categorized as Foreign Orientals despite having settled in Southeast Asia for several generations. For a long time prior to the 1850s, their lives in the colony was accepted by Dutch authorities as a historical outcome of transregional trade, and legal differentiation, if any, was framed as a concession rather than an imposition. Indeed, from the early seventeenth century onward, the VOC allowed local populations to abide by their own laws with minimal interference, although VOC authorities did appoint heads of various communities. By 1760, civil law in VOC courts was extended to both Natives and Foreign Orientals only in areas of commercial interest, namely port cities and coastal areas where the VOC was based. In 1848, nearly half a century after the Dutch government officially took over from the VOC as political rulers of the Netherlands Indies, colonial authorities began to take a firmer hard in the legal lives of subjects as a range of new codes was introduced, including a civil code, a code of commerce, and a code of criminal procedure. The relationship between the Dutch and Foreign Orientals was historically contingent on several factors. During the seventeenth and eighteenth centuries, the VOC perceived that Arab and Chinese merchants amassed much capital in the Indonesian islands but the VOC chose not to interfere in the trade between Natives and these other traders who later came to be classified as Foreign Orientals because, despite their trade monopoly, they relied heavily on these merchants to trade from port to port and with the hinterland in the interior. Not only that, some Arab and Chinese merchants were also moneylenders to the ailing VOC from the mid-sixteenth century onward.²² Even after the Dutch government took over governance from the VOC in 1800, Foreign Orientals remained prominent in commerce in Semarang, Batavia, and Surabaya in Java. They were active in what the Dutch termed binnenlandsche handel, akin to country trade within the region, especially with the British entrepot of Singapore, further afield with British India, and across the Indian Ocean to Mauritius.²³ Arab merchant-rulers continued to be key participants in the well-established trade between west coast of Borneo (Pontianak), in Sumba beyond east Java, Banjarmasin on the island of Sulawesi, and Palembang throughout the colonial period.²⁴

Figure 2.

Tram car with passengers in Batavia. Lithograph after an original watercolor by J. C. Rappard (1881–89). Collection Nationaal Museum van Wereldculturen, the Netherlands, coll. no. TM-3728–770.

Because these Foreign Orientals could not be easily expelled from the colony by Dutch authorities, exclusion would have to be done by other means, such as through legislation. In law, their identity as colonial subjects hinged upon their level of assimilation—not within the archipelago over several centuries historically, but within the colony as determined by Dutch authorities in the nineteenth century. Centuries of interaction and intermarriage fell away within this framework to be replaced by notions of nativism and indigeneity subordinated to colonial profits. Metrics of classification, which I describe in chapter 3, remained vague since no rubric was ever produced. This is because it was not actually ethnicity that determined the status of the Foreign Oriental but Dutch economic pragmatism and colonial political interests, which were constantly fluctuating.²⁵

The first regulation in 1818 casting the Arabs, Chinese, and other Orientals as separate communities in the Netherlands Indies was vague, referring to them as Moors, Arabs and other foreigners, non-Europeans, established and living in one of the sites of the Dutch East Indies.²⁶ Subsequent regulations in 1827, 1830, and 1836 further sharpened the contours of their identities as separate from Natives and Europeans.²⁷ Dutch racial ideologies became normative through law when in 1854, the Dutch government implemented a dual legal system for subject populations that was formalized in the landmark Article 109 of the Government Regulation (Regeeringsreglement):

The provisions of this Regulation and of all other general regulations involving Europeans and Natives are applicable, where the contrary has not been determined, applicable to them with similar people. Grouped with Europeans are all assimilated Christians and all persons mentioned in the next sentence. Along with Natives are assimilated Arabs, Moors, Chinese and all those Mohammedan or heathen.²⁸

It was promulgated, and subsequently led to a differentiation of laws in 1855 for Foreign Orientals, a category that included Chinese, Indian, Arab, and Japanese inhabitants who became subject to the same laws as Europeans under private and commercial law but subject to the same laws as Natives under public law.²⁹ The Arabs’ dual legal status simultaneously situated them apart from the bulk of Muslim subject populations due to their ethnicity but within local Muslim societies due to their religious faith. In terms of personal law, Arabs were grouped with other native Muslims who were not only subjected to Islamic law but also to local laws known as adat. although it was never determined what local adat should be applied to Arabs across the Netherlands Indies.³⁰

In a way, the category of Foreign Orientals emerged as form of quasi-sovereignty, albeit under colonial rule. The differentiation of colonial populations into three sections—Natives, Foreign Orientals, and Europeans—gave rise to quasi internationaal privaatrecht where each legal system meant for each group was attributed fictional territorial jurisdiction.³¹ The phenomenon fits what Lauren Benton describes as the emerging model of an international legal community composed of polities recognized as civilized by the societies already considered members of the international community during the nineteenth century.³² The fact that international law, glossed as intergentiel recht, was invoked in cases involving Natives, Foreign Orientals, and/or Europeans from 1887 onward meant that a conflict of laws was inherent in every case involving parties in different colonial categories.³³ This system is incongruous since international law could only be applied between nations; it certainly did not reach within states because that would violate a state’s sovereignty.³⁴ Moreover, the application of international law assumes that there are identifiable nations within the colony. On a superficial level, it flattered the Dutch colonial government to conceive of the population of the Netherlands Indies as a territorially compact people rather than the sprawling and stratified colony that it was.³⁵ An optimistic teleology would be that this so-called international system was the harbinger of its future implementation.³⁶ It is easy therefore to imagine how some of the Arab elite were inspired to achieve actual quasi-sovereignty, a term that refers to the status of subpolities within empire-states that were said to retain some measure of authority over their internal legal affairs while holding only limited capacity to form international relations.³⁷ While extraterritorial arrangements found in Japan, China, and the Ottoman Empire in the nineteenth and twentieth centuries are well documented, aspirations by subject populations in colonies for the status of exemption from the law of the land have not been investigated, though Lisa Ford points out how Aboriginal populations in New South Wales were exempted from settler law for a time in an anomalous arrangement.³⁸ As I examine in chapter 4, the attempt by the Arab elite in the Netherlands Indies to appeal to Ottoman protection as subjects potentially led to a paradigm of diplomacy in the colony that inadvertently allowed some colonial subjects more latitude than the Dutch colonialists intended for them, since they certainly did not possess equal status.

British Straits Settlements

Colonial legal authorities projected the foundations of their jurisdictions further back in time and across larger territories—through retrospective declarations predicated on a mixture of certain values and norms of behavior on one hand; and through treaties, charters of justice, binding judgments in case law, and legal ordinances that formed milestones in law and became irrevocable in the colonies on the other. In other words, colonial legal history is an invented legal tradition, in the words of Eric Hobsbawm, and therefore rife with epochal fallacies that were weaponized against indigenous populations.³⁹ Building on the work of David Harvey, Franz von Benda-Beckmann and Keebet von Benda-Beckmann argue that legal spaces coexist with other spaces at different paces depending on the kind of legal system that constitutes the space, for each legal (sub) system has characteristic ways in which spaces are being timed.⁴⁰

Both the Netherlands Indies and the British Straits Settlements experienced this, although the scale of population and geography was vastly different. As a colony, the Straits Settlements on Penang, Malacca, and Singapore were unusual in that they were noncontiguous with one another, connected by the sea, in the form of the narrow channel known as the Straits of Malacca, which they all abut. The Straits Settlements was largely urban and of course much smaller in size than the Netherlands Indies. As port cities primarily, they quickly grew in scale and complexity from the second half of the nineteenth century onward. Although the economy of the Straits Settlements was varied, trade was the raison d’etre of these port cities. As a result, the British colonial government consistently tried their best to retain capital held by any wealthy merchant, including colonial subjects. A city, Paul Boyer writes, was no mere chance accumulation of free-floating human atoms but rather a cohesive interconnected social organism that deserved—indeed demanded—the dedicated loyalty of all its constituent parts.⁴¹ British authorities in the Straits Settlements recognized that the loyalty of the Straits Settlements’ constituents, especially colonial subjects who formed the bulk of the population, was key to the success of the colony. This is partly why epochal fallacies were more patently instrumental in the legal administration of the British Straits Settlements than in the Netherlands Indies because they were deployed with more energy and enthusiasm with a clear aim—to make the trading settlements as profitable as possible.

The Straits Settlements had uncertain legal origins that had to be smoothed out to convey the impression of stability and continuity. Toward the end of the eighteenth century, British traders—privateers and East India Company men alike—thought it necessary to counter Dutch dominance in the Straits of Malacca. In 1786, the king of Kedah on the Malay Peninsula ceded the island of Penang to Captain Francis Light, a former privateer turned East India Company trader.⁴² Consequently, the English captain hoisted British colors in the name of King George III and renamed it Prince of Wales Island.⁴³ In 1787, Light appointed leaders among the various races who came to live in Penang to be their captain, to settle their disputes, and to superintend their conduct.⁴⁴ Thereafter, the port city attracted residents from nearby regions, especially merchants who traded mainly in opium, tin, pepper, betel nut, and textiles. In 1824, the Anglo-Dutch Treaty was signed in London, dividing the archipelago into two spheres of influence between the two European powers. Malacca was handed over to English East India Company (EIC) according to the terms of the treaty. Singapore, already an EIC settlement since 1819, formally joined the Straits Settlements in 1826. The Second Charter of Justice in 1826 formally introduced English Law as the basic law in the Straits Settlements and relegated local laws—whether Chinese, Hindu, or Islamic—to the realm of family law. The Straits Settlements was under the government of Fort William of Bengal, under East India Company rule until 1858 when the company was abolished.

Moshe Yegar claims that Indian and Arab elites were able to gain leadership positions in the Straits Settlements due to the absence of hereditary nobility and religious offices prior to colonization.⁴⁵ The fact that the British government painstakingly tried to construct the argument that the three Straits Settlements had no established indigenous authority prior to Francis Light’s arrival suggests that they did not necessarily believe that forms of local authority were absent in the Straits Settlements. In May 1858, the colony was retrospectively declared uninhabited by Chief Justice Benson Maxwell in the landmark case of Regina v. Willans, effectively stripping earlier layers of jurisdiction.⁴⁶ The case involved a magistrate named William Willans Willans who had earlier presided over a case involving a South Asian male indentured laborer named Chivatean who broke his contract in November 1857 by fleeing his estate in Province Wellesley, to whom he still owed a debt.⁴⁷ Maxwell ruled that Willans was right to invoke the rules and principles of English common law, specifically Act 4, Geo. IV., c. 34, which protected a workman from being put into prison more than once for not fulfilling his contract.

Penang was not exactly unowned land—better known as terra nullius, which became legal doctrine in Australia—but it was as good as empty, Maxwell implied.⁴⁸ By emptying out the Straits Settlements of actual inhabitants through legal rhetoric, he employed an extreme move by any measure, especially absurd since one of the Straits Settlements was Malacca, a populous port city whose spectacular rise in the fifteenth century before declining under Portuguese rule in 1511 was well documented. He did so in order to get around the general principle of English jurisprudence that local custom, when not opposed to English law, has all the force of a statute. The legal precedent set by Penang was important for the whole of the British Straits Settlements because it was the first such settlement. It could not have been a coincidence that Maxwell declared complete British jurisdiction in the Straits Settlements in anticipation of the dissolution of the East India Company later that year. Following the Government of India Act of 1858 that was promulgated in August and commenced in November, the company was dissolved and therefore lost all its administrative powers,